Syed v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Syed v Minister for Home Affairs [2019] FCA 498

Appeal from: Application for Extension of Time:  Syed v Minister for Immigration and Border Protection(No 2) [2018] FCCA 2305
File number: NSD 1575 of 2018
Judge: FLICK J
Date of judgment: 12 April 2019
Catchwords:

PRACTICE AND PROCEDURE — application for an extension of time in which to appeal — proposed grounds of appeal without merit — application refused

PRACTICE AND PROCEDURE — refusal of adjournment — need for particular caution when seeking review   
Legislation:

Migration Act1958 (Cth) s 362B

Federal Court Rules2011 (Cth) rr 36.03, 36.05

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170

Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197

Bloch v Bloch (1981) 180 CLR 390

BUD17 v Minister for Home Affairs [2018] FCAFC 140

Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111

House v The King (1936) 55 CLR 499

Lashansky v Legal Practice Board of Western Australia (No 3) [2013] WASCA 260

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155

Syed v Minister for Immigration and Border Protection&Anor [2018] FCCA 2304

Syed v Minister for Immigration and Border Protection & Anor (No. 2) [2018] FCCA 2305

SZRBN v Minister for Immigration and Citizenship [2012] FCA 984

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399
Date of hearing: 7 February 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 32
Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent: Ms K Hooper of MinterEllison
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs.

ORDERS

NSD 1575 of 2018
BETWEEN:

MUSTAFA SYED

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPELAS TRIBUNAL

Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

12 APRIL 2019

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to the Minister for Home Affairs.

2.The Application for an extension of time is refused.

3.The proceeding is dismissed.

4.The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

FLICK J:

  1. The Applicant in the present proceeding, Mr Mustafa Syed, applied for a Partner Visa under the Migration Act1958 (Cth) (the “Migration Act”).  On 2 December 2015, a delegate of the Minister refused to grant the visa.

  2. Mr Syed sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”). An invitation was extended to Mr Syed by the Tribunal to provide further information in support of his application by 1 December 2016 and…

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Details
Case
[2019] FCA 498
Decision Date

CaseChat Overview and Summary

In Syed v Minister for Home Affairs, the applicant sought an extension of time to appeal against a decision made by the Federal Circuit Court of Australia, which had dismissed his application for judicial review of the respondent's decision. The court was required to determine whether to grant the applicant an extension of time to file his Notice of Appeal and whether to grant an adjournment of the proceedings to allow the applicant to file a Notice of Appeal. The court also had to consider whether the applicant's proposed grounds of appeal had any merit.

The court found that the applicant's proposed grounds of appeal did not identify any error on the part of the primary judge and were without merit. The court noted that the applicant had failed to take advantage of an opportunity to file evidence and submissions, and had not provided any indication of what evidence or submissions he contended should have been taken into account. The court held that it should not extend the time for filing a Notice of Appeal if the proposed grounds of appeal were not sufficient to warrant an extension. The court also found that the respondent's name should be changed to the Minister for Home Affairs to regularise the proceedings and avoid potential confusion.

The court refused the applicant's application for an extension of time to file a Notice of Appeal and dismissed the proceeding. The court ordered that the name of the respondent be changed to the Minister for Home Affairs and that the applicant pay the costs of the respondent. The court held that there was no reason why costs should not follow the event.

Orders

Orders of the court

1. The name of the First Respondent be changed to the Minister for Home Affairs.

2. The Application for an extension of time is refused.

3. The proceeding is dismissed.

4. The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The fourth proposed Ground of Appeal is without merit.The failure to take evidence – Ground 5 The final proposed Ground of Appeal, like the fourth proposed Ground, seeks to identify error on the part of the primary Judge. This proposed Ground seeks to contend that the primary Judge erred in making a decision “without taking any evidence/submissions”. The difficulty with this proposed Ground, however, is at least two-fold, namely:·an order made by a Registrar of the Federal Circuit Court on 20 April 2017 provided for the filing by Mr Syed of such evidence and submissions as he wished to rely upon and there was (in effect) no evidence filed by him and no submissions filed; and ·there is a failure on the part of Mr Syed to now provide any indication of the nature of the evidence or the submissions he contends should have been taken into account but which was not taken into account.A party who seeks to contend on appeal that a primary Judge has erred in not taking into account evidence or submissions faces an insurmountable difficulty where an opportunity was extended to file that evidence and those submissions so that it can be identified by any appellate court and where that opportunity has not been availed of. The fifth proposed Ground of Appeal is without merit.CONCLUSIONS The first three proposed Grounds of Appeal fail to identify any error on the part of the primary Judge and no error is, more importantly, discernible in the manner in which the primary Judge resolved the like Grounds of Review at first instance. The final two proposed Grounds of Appeal are without merit. Although the extension of time in which to file a Notice of Appeal sought may be short, the proposed Grounds of Appeal are not such as to warrant an extension of time being granted. There is little point in extending time in which to file a Notice of Appeal only to thereafter dismiss the appeal. It should finally be noted that the First Respondent was identified before the Federal Circuit Court of Australia as the Minister for Immigration and Border Protection. Before this Court, the Applicant variously identified the First Respondent as the Minister for Immigration and Border Protection or the Minister for Department of Home Affairs. In order to regularise the proceeding and to avoid potential confusion an order should be made changing the name of the First Respondent to the Minister for Home Affairs. There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE:1.The name of the First Respondent be changed to the Minister for Home Affairs.2.The Application for an Extension of Time is refused.3.The proceeding is dismissed.4.The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

Decision

Reasons for decision

The fifth proposed Ground of Appeal is without merit.CONCLUSIONS The first three proposed Grounds of Appeal fail to identify any error on the part of the primary Judge and no error is, more importantly, discernible in the manner in which the primary Judge resolved the like Grounds of Review at first instance. The final two proposed Grounds of Appeal are without merit. Although the extension of time in which to file a Notice of Appeal sought may be short, the proposed Grounds of Appeal are not such as to warrant an extension of time being granted. There is little point in extending time in which to file a Notice of Appeal only to thereafter dismiss the appeal. It should finally be noted that the First Respondent was identified before the Federal Circuit Court of Australia as the Minister for Immigration and Border Protection. Before this Court, the Applicant variously identified the First Respondent as the Minister for Immigration and Border Protection or the Minister for Department of Home Affairs. In order to regularise the proceeding and to avoid potential confusion an order should be made changing the name of the First Respondent to the Minister for Home Affairs. There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE:1.The name of the First Respondent be changed to the Minister for Home Affairs.2.The Application for an Extension of Time is refused.3.The proceeding is dismissed.4.The Applicant is to pay the costs of the First Respondent, as either agreed or assessed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.